Center on Global Governance
With the rise of supranational legislative bodies, the use of supranational adjudicatory bodies has also increased. These adjudicatory bodies have even been allowed to review the domestic law decisions offederal administrative agencies, and their decisions are insulated from any review by Article III courts. These developments have been met by intense opposition. This Article addresses the question whether, as claimed by several writers, the emerging supranational adjudicatory order impermissibly contravenes the "essential attributes of the judicial power established by Article III." Examining two case studies, the North American Free Trade Agreement (NAFTA) and the Supreme Court's recent decisions regarding Article 36 of the Vienna Convention, Professor Monaghan concludes that (generally at least) supranational judicial review does not run afoul of Article III. He draws upon the historical practice of allowing binational panels (BNPs) to adjudicate claims by Americans against foreign sovereigns that stretches back to the earliest days of the Founding, beginning with the Jay Treaty. Indeed, in the period following the Civil War, BNPs even "reviewed" decisions of the United States Supreme Court. With respect to the constitutionality of supranational tribunals expounding treaty obligations, Professor Monaghan argues that these tribunals are fully competent to determine these obligations, and, at least in the trade area, fit well within the "public rights" doctrine, which has played an important role in the rise of the administrative state. Professor Monaghan concludes that based on historical practice and current doctrine, Article III, standing alone, poses no substantial barrier to supranational judicial review.
Henry P. Monaghan,
Article III and Supranational Judicial Review,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/166